Dewey v. Detroit, Grand Haven & Milawaukee Railway Co.

Long, J. October 21, 1890, the defendant received at Holly from the Flint & Pere Marquette Railroad Company a car loaded with lumber, for the purpose of transporting it to the Lake Shore & Michigan Southern Junction, in Wayne county, at which point it was to be placed upon the line of the Wabash transfer track. The plaintiff was in the employ of the defendant as a brakeman, and serving on the train in that capacity. He had worked for the company about one year. The train reached the Lake Shore & Michigan Southern Junction about 2 o’clock in the morning, and the car was run upoij the Wabash transfer track. It became necessary to couple the car to — 331 — a flat car on the transfer. For the purpose of doing this, the flat car was backed up by the engine to the loaded car. The plaintiff- stepped in between to make the coupling, when his body was caught between the two cars. In his struggle to release himself his right hand and the lower portion of his right arm were crushed between the bumpers and the drawheads of the cars, and so mangled as to necessitate amputation. It appears that the lumber upon the car received at Holly projected at the bottom, at one end, beyond the platform of the car for four or five inches, and a distance upwards of a few tiers only. This projection of lumber decreased the distance between the cars, and by it the plaintiff was caught as the cars came together. He claims to have had no knowledge that this lumber projected until the moment he was caught by it. It was a dark night, and he claims he could not see, even though he carried a lantern at the time. The declaration contained five counts. Plaintiff's counsel claim that his demand is founded upon several distinct theories, .all involving negligence on the part of the defendant: 1. That he was injured by reason of the defective construction of defendant's flat car,' which allowed the two cars to come so close together that he was caught between them, and, in his alarm and confusion, had his hand and arm caught between the buffers and drawheads. 2. That he was injured by reason of the projection of the lumber beyond the end of the Flint & Pere Marquette car, which, catching his body and forcing him against the end of the flat car, so hurt and frightened him that, in his struggles to escape, he unconsciously placed his hand and arm in position to be caught and crushed between the buffers and drawheads. 3. That by reason of the combined efforts of the projection of the lumber from the one car, and the improper construction of the other, he was caught and injured. 4. That he was injured by reason of the necessity of passing his hand and arm directly between the faces of — 332 — the opposing buffers, because of their being improperly placed in the same horizontal plane with the drawhead upon the flat car. Upon the trial in the court below it was admitted that the car was received from the Mint & Pere Marquette Eailroad Company, and that, at the time it was so received, defendant had in its employ a person known as “ car inspector,” whose duty it was to inspect all cars received by defendant at Holly, and to see that they were properly loaded and in good condition. After the arguments had been concluded, the court below remarked, substantially, that the claim that the flat car ivas defective in construction passed out of the case, for the reason that such defect, if it existed, was not the proximate cause of the injury. The court directed the verdict in favor of the defendant, on the ground that the car inspector was a fellow-servant with the brakeman, and, inasmuch as it did not appear that the company had not used due care in his selection, it could not be held liable for his negligent inspection, even if he were negligent. The case came to this Court on error, and was argued at the April term, 1892, and by a majority reversed, and remanded for a new trial. Subsequently a motion for rehearing was granted, and the case has now been fully argued and further considered by the Court. The writer of this opinion joined in the opinion for reversal, but since the reargument of the case, and a more full consideration of the principles involved, and the consequences attendant upon the rules then laid down, has concluded to revise that opinion, and write for affirmance. The rule that the master must furnish the servant with a reasonably safe place in which to perform his work has been settled by repeated decisions of this Court, and in many late cases. Van Dusen v. Letelier, 78 Mich. 492; Morton v. Railroad Co., 81 Id. 423; Roux v. Lumber Co., 85 Id. 519. It .is also well settled that this duty cannot — 333 — be delegated to another, so as to relieve the master from personal responsibility. Van Dusen v. Letellier, supra, Morton v. Railroad Co., supra. But the real point in controversy here is whether the duty of the master is to be extended so that he may be made liable for the neglect of a car inspector in not observing that a car is improperly loaded when it is to be put into the train for transportation. There is no complaint here about the car itself. It was proper in construction, and a safe car for use in that service. Upon the first argument of the case in this Court the real point in controversy was not so fully pointed out and considered as upon the reargument, and the case was regarded as very similar in principle to Smith v. Potter, 46 Mich. 258, which Mr. Justice McGrath considered as virtually overruled by the later cases cited-above. There is, however, a broad distinction between Smith v. Potter and the present case. In the former case, the injury complained of was received by reason of a defect in the framework of the car itself, while here the accident is attributable to improper loading. In the later decisions the doctrine of Smith v. Potter has been doubted, and the rule broadly stated that the master must furnish to the servant a safe place to work and safe appliances to work with. The learned counsel for the defendant does not contend here for the doctrine of Smith v. Potter, but does claim that the defendant discharged its full duty to the plaintiff when it furnished safe cars and a competent-inspector; that, having done this, it could not be held liable for the negligence of the inspector, as such inspector was a fellow-servant of the plaintiff. The contention of defendant’s counsel in this respect is correct. If a car is out of repair, so that it is in a dangerous condition for use, such fact might not be observed by the ordinary brakeman, but manifest only to a person of skill in that line. There is some reason, therefore, for — 334 — holding the company liable, where these circumstances are made to appear, though a competent inspector be furnished, for the master is bound to furnish safe tools and appliances as well as a safe place to work, and cannot delegate the duty of providing them, and thus escape liability. But, in regard to the proper loading of cars, quite a different rule must necessarily prevail. The master' must undoubtedly exercise care in the selection of inspectors to see that cars are not improperly loaded or overburdened, so that they are dangerous to employés, but, after this has been done, it cannot be claimed that the* master is to be held responsible for the faithful performance of the inspectors’ duty. Any other rule than this would make railroad companies insurers of the lives and limbs of employés. In the present case, the projection of the lumber over the .end of the car was as apparent to the brakeman, if he had taken the precaution to make observation, as to an inspector. It required no special skill or training to ascertain the fact. The duties of a brakeman are known to be dangerous, and when one enters such service he must be held to have assumed the risks of the employment. He must exercise care himself in going between moving cars to make couplings. In an exhaustive opinion by Mr. Justice Brewer in Railroad Co. v. Baugh 149 U. S. 368 (13 Sup. Court Rep. 914), the doctrine here enunciated is treated, and a like conclusion reached. A case involving the same principle was before the court of appeals of New York, and decided in 1889. Ford v. Railway Co., 117 N. Y. 638, reported in full in 41 Amer. & Eng. R. R. Cas. 369. It appeared that cars known as “gondola cars,’’ generally used for carrying coal, and which had boxes from 18 to 24 inches high, were loaded with lumber. The company had furnished suitable stakes, which could have been properly fastened inside of the — 335 — boxes. Where the ends of the boxes were stationary, one end of the timber was laid down in the bottom of the ear, and the other end projected over the end of the box in cases where the timber was longer than the box. The lumber was piled, after it reached the top of the box, so that one piece overlapped another, the pile thus constantly growing narrower across the top. The cars were loaded under the direction of a foreman of great experience, and, although they were not regular lumber cars, they were much used for carrying lumber for short distances. Plaintiffs intestate, a switchman, was injured by the lumber on one of the cars falling upon him. The cars had been properly inspected, before being sent out, by proper and competent inspectors. It was held that the sole cause of the injury was the improper loading of the car through the failure of the employós to use the stakes furnished by the company, and' that those employés were the fellow-servants of the deceased, for whose carelessness the defendant was not responsible. The same doctrine was also laid down in Byrnes v. Railroad Co., 113 N. Y. 251. There the plaintiffs intestate was in defendant's employ as a brakeman. A car loaded with lumber at a way station was to be attached to the train. It was being moved by an engine from the switch to the main track. Plaintiff's intestate got -upon it to stop it, but, in consequence of the improper manner in which the car was loaded, the brake was rendered useless, a collision occurred, and lie was thrown from the car, and killed. In an action to recover damages, it appeared that the car and its appliances, before it was loaded, were in good condition. By the defendant's rules it was made the duty of the station-master either to inspect the car himself or have some one do so before it was taken out, Had this been done, the improper loading would have been discovered. It was held that, defendant having provided — 336 — a safe car, and a system and competent man for its inspection, it was not liable for injuries resulting to a co~ employé from neglect of their duty. This rule was also laid down in the following cases: Railwoay Co. v. Black, 88 Ill. 112, Railroad Co. v. Gower, 85 Tenn. 465; Railway Co. v. Husson, 101 Penn. St. 1. The court below was correct in ruling that the defective condition of the flat car, if it was defective, had no bearing in the case. The plaintiff’s injury was produced by the defective loading, and not by any defect in the car. The judgment must be affirmed. Hooker, C. J., and Grant, J., concurred with Long, J.